NEWS & ANALYSIS

Did Mpshe plagiarise a Hong Kong judge?

James Myburgh |

14 April 2009

The curious similarities between the legal grounds for NPA decision on Zuma and an obscure 2002 ruling

On Monday last week Acting National Director of Public Prosecution Moketedi Mpshe announced his decision to drop charges against ANC president Jacob Zuma. In his statement setting out the grounds for his decision Mpshe cited various (mainly foreign) legal rulings. He then quoted extracts from damning recordings of various cellphone conversations between former Scorpions boss Leonard McCarthy and others in late 2007. These had been presented by Zuma's lawyers to the NPA in the course of their representations. On the face of it, these seem to suggest that McCarthy had been acting as a kind of Mbeki-ite mole within the prosecuting authority.

Having read these extracts Mpshe rather eloquently concluded: "It is against this broad principle of abuse of process that the conduct of Mr McCarthy must be seen and tested. The question for close consideration is encapsulated in expressions such as ‘so gravely wrong', ‘gross neglect of the elementary principles of fairness', ‘so unfair and wrong', ‘misusing or manipulating the process of the court.' If the conduct can be so categorized, it would be unconscionable for the trial to continue."

Quite predictably Mpshe's announcement was welcomed by the ANC and its alliance partners, and condemned by almost all opposition parties. Debate around the NPA's decision has focused mainly on the McCarthy recordings, their meaning and legality. Less attention has been paid to the legal basis underpinning Mpshe's decision to drop charges. A number of commentators have noted that the decision quotes - but effectively ignores - the recent Supreme Court of Appeal judgment which stated that the motive behind a prosecution is irrelevant.

There was always something odd about the section of Mpshe's statement which went under the heading ‘legal considerations.' It starts out adequately enough quoting the South African Constitution and then from the judgment in the case of the State versus Yengeni.

Things start going slightly awry when Mpshe quotes the following from the judgment of Smyth v Ushewekonze and Another 1998: "Section 18(2) embodies a constitutional value of supreme importance. It must be interpreted therefore in a broad and creative manner so as to include within its scope and ambit not only the impartiality of the decision making body but the absolute impartiality of the prosecutor himself whose function, as an officer of the court, forms an indispensable part of the judicial process."

This judgment was issued by Gubbay CJ in the Harare High Court. The section referred to is from the old Zimbabwean constitution, not the South African one. But given that Gubbay cites South African precedent - and this judgment is cited by judges in South Africa - this does not seem too problematic.

However, things become properly curious as Mpshe proceeds to cite a string of rulings by the courts of the British Commonwealth. First there Ormrod LJ's judgment in R v Derby Crown Court, ex Parte Brooks is cited, then Mason CJ in Jago v District Court of New South Wales, then Lord Lowry in Connelly v DPP 1964; then Lord Steyn in Regina v Latif , then Lord Clyde in R v Martin, and finally Lord Hope in R v Hui Chi-Ming.

There are a number of questions that one could ask about this. Are, for instance, these rulings really relevant to Mpshe's decision to drop charges? This is not just because South Africa has its own common law and constitution, but because these judgments all discuss the considerations that the courts should weigh up when asked to stay proceedings. One would not know this from Mpshe's decision as most references to "the court" have been excised and replaced with phrases such as the "criminal justice process". However, the really interesting question is where this all comes from?

At this point it is useful to divert to a judgment handed down by Justice Conrad Seagroatt of the Hong Kong High Court on December 13 2002 (see here). One section is headed "The abuse of process - the perennial dilemma" and it - rather strikingly - cites all the British Commonwealth judgments that Mpshe's statement referred to. Even more strikingly the phrases quoted are almost all the same as well - give or take some self-serving summarising, truncation and rewriting by the NPA (see below).

Most strikingly of all are Justice Seagrott's concluding remarks. These seem to presage by some six-and-a-half years - almost to the word - the Mpshe comments quoted above. "It is against this evolved statement of broad principle" Seagrott wrote, "that the prosecution's failures and shortcomings with regard to disclosure must be seen and tested. Those for close consideration are best summed up by such expressions as ‘so gravely wrong', ‘gross neglect of the elementary principles of fairness', ‘so unfair and wrong', ‘misusing or manipulating the process of the court'. If those failures can properly be so categorized, are they such as to make it unconscionable that a re-trial should go forward?" (My emphasis)

It is rather remarkable how Mpshe's opinion of McCarthy so closely resembles that of Justice Seagrott's opinion of the prosecution in his case in Hong Kong. Their conclusions are rather similar as well. Just as Mpshe decided that "an intolerable abuse has occurred which compels a discontinuation of the prosecution", Seagrott ruled that "the failures constitute an intolerable abuse which compel intervention. Accordingly I order a permanent stay on these proceedings."

Incidentally, the Seagrott ruling was overturned on appeal. In its judgment the Court of Final Appeal noted, that the court must take account "of the public expectation that persons charged with serious criminal offences will be brought to trial unless there is some powerful reason for not doing so."

Below is a table setting out paragraphs of the Mpshe statement against relevant sections of the Seagrott judgment.

Statement by the NDPP, Moketedi Mpshe, on the matter S v Zuma and others, Pretoria, April 6 2009

Judgment by Conrad Seagroatt in criminal case of HKSAR and Lee Ming Tee, Hong Kong High Court, December 13 2002

There are generally two categories of abuse of process:

a) a manipulation or misuse of the criminal justice process so as to deprive the accused of a protection provided by law or to take an unfair advantage over the accused;

b) where, on a balance of probability the accused has been, or will be prejudiced in the preparation or conduct of his defence or trial by either a delay or haste on the part of the prosecution which is unjustifiable. (R v Derby Crown Court, ex Parte Brooks [1985] 80 Cr. App. R 164, per Ormrod LJ)

The Divisional Court in R v. Derby Crown Court ex parte Brooks 1985. 80 Cr. App. R. 164 (Ormrod LJ) went on to define the categories of abuse of process as either

"(a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or

(b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is injustifiable.

The issue can be formulated as follows:

The question is whether a legal or judicial process which is aimed at dispensing justice with impartiality and fairness to both parties and to the community which it serves should permit its processes to be abused and employed in a manner which gives rise to unfairness and/or injustice. (See Jago v District Court of New South Wales, [1989] 168 CLR 23 at 30, per Mason CJ)

In Jago v. District Court of New South Wales (1989) 168 CLR 23 (at page 30) Mason CJ formulated the issue as follows:

"The question is ... whether the court whose function is to dispense justice with impartiality and fairness to both parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness."

Prosecutors have an inescapable duty to secure fair and just treatment of those who come or are brought before them.

This was a hark-back to Lord Devlin's speech in Connelly'scase (at page 1354): "Are the courts to rely on the Executive (in the form of the Crown as prosecutor) to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them?

Abuse of process may occur on its own, either because:

a) it will not be possible to give the accused a fair trial, or

b) it will offend one's sense of justice, integrity and propriety to continue with the trial of the accused in the particular case. Discontinuation is not a disciplinary process undertaken in order to express one's disapproval of abuse of process; it is an expression of one's sense of justice and propriety.(See Conelly v DPP 1964 AC 1254)

Lord Lowry followed the same line of approach:

"Whether the proposed trial will be an unfair trial is not the only test of abuse of process.

" ... I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either

(1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or

(2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and, ought not to be exercised in order to express the courts disapproval of official conduct."

The framework within which abuse of process has to be considered was set out in R vLatif 1996 1 WLR 104. There will always be a tension between two extreme positions in that, if a trial is discontinued, the public perception would be that the criminal justice system condones improper conduct and malpractice by law enforcement agencies - and if a trial is discontinued the criminal justice system will incur the reproach that it is failing to protect the public from serious crime.

The House of Lords in R v. Latif 1996 1 WLR 104 sets out the legal framework in which the issue of abuse of process had to be considered. There was a weakness of the extreme positions in which, if the court always refused to stay such proceedings, the public perception would be that a "court condones criminal conduct and malpractice by law enforcement agencies" - and if it always stayed such proceedings it would "incur the reproach that it is failing to protect the public from serious crime".

An assessment of abuse of process involves a balancing exercise. In Latif it was clear that a fair trial was possible. The overriding question, however, was whether the trial ought to be discontinued "on broader considerations of the integrity of the criminal justice system".

According to Lord Steyn, criminal proceedings may be discontinued not only where there will be no fair trial but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion to discontinue should be exercised in particular circumstances will not be useful. But it is possible to balance the public interest in ensuring that those charged with serious crime should be tried against a compelling public interest which expresses a distaste and outrage for abuse of process by law enforcers who are expected to behave with absolute integrity, impartiality, fairness and justice. Such an approach conveys the view that a fair and just criminal system should not accept the attitude that the end justifies the means.

The court's discretion involves a balancing exercise. In Latif it was plain that a fair trial was possible. The question was whether the trial ought to have been stayed "on broader considerations of the integrity of the criminal justice system."

"[They] conclusively establish that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried, and the competing public interest in not conveying the impression that the court will accept the approach that the end justifies the means."

The approach in Latif has been followed consistently. Thus:

"No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward..." (R v Martin, [1998] 1 All ER 193, at 216, per Lord Clyde).

"Something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding." (R v Hui-Chi-Ming [1992] 1 AC 34, at 57B, per Lord Hope)

"An abuse may occur through the actings of the prosecution, as by misusing or manipulating the process of the court. But it may also occur independently of any acts or omissions of the prosecution in the conduct of the trial itself". (Martin (supra), at 215, per Lord Clyde)

141. The House of Lords maintained their approach in their decision in R v. Martin 1998 1 All ER 193 ... The decision is important for the consistency of approach and range of terminology adopted to describe the abuse which would justify a stay of proceedings:

"No single formulation will readily cover all cases, but these must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human right or some gross neglect of the elementary principles of fairness" (Lord Clyde at page 216 d.)

Lord Clyde also adopted what Lord Hope had said in R v. Hui Chi-ming (1992) 1 AC 34 (at page 57B) on the subject of abuse of process:

... "Something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding."

Lord Clyde added:

"An abuse may occur through the actings of the prosecution, as by misusing or manipulating the process of the court. But it may also occur independently of any acts or omissions of the prosecution in the conduct of the trial itself." (p. 215 j.)

SCA judgment on motive and transcripts quoted by Mpshe

It is against this broad principle of abuse of process that the conduct of Mr McCarthy must be seen and tested. The question for close consideration is encapsulated in expressions such as " so gravely wrong", "gross neglect of the elementary principles of fairness", "so unfair and wrong", "misusing or manipulating the process of the court." If the conduct can be so categorized, it would be unconscionable for the trial to continue.

It is against this evolved statement of broad principle that the prosecution's failures and shortcomings with regard to disclosure must be seen and tested. Those for close consideration are best summed up by such expressions as "so gravely wrong", "gross neglect of the elementary principles of fairness", "so unfair and wrong", "misusing or manipulating the process of the court". If those failures can properly be so categorized, are they such as to make it unconscionable that a re-trial should go forward?

Using one's sense of justice and propriety as a yardstick by which McCarthy's abuse of the process is measured, an intolerable abuse has occurred which compels a discontinuation of the prosecution.

I find, with respect, the words of Lord Lowry, singularly attractive and apposite as an expression of the guiding force: ‘the court's sense of justice and propriety'. These coupled with Lord Steyn's ‘integrity of the criminal justice system' help to set the yardstick or criterion by which the abuse complained of is to be measured. In my judgment this is one of those rare cases where the failures constitute an intolerable abuse which compel intervention. Accordingly I order a permanent stay on these proceedings.